New Jersey may have turned an important corner in its long struggle to see sports betting introduced at Atlantic City casinos.
Florida attorney Daniel Wallach, who is with Becker & Poliakoff, contends New Jersey’s arguments appeared to get important traction about two weeks ago during a federal court hearing in Philadelphia before a three-judge panel of the Third Circuit Court of Appeals that was looking beyond previous arguments about whether a 23-year-old federal ban is or isn’t constitutional.
“It’s possible they’ll be taking bets in Atlantic City by the time of the next Super Bowl,” Wallach said, noting that attorneys speaking for the four professional sports leagues and the NCAA appeared to stumble as the judges peppered them with questions about what does it mean to authorize or not authorize, to regulate or not regulate?
“The court seemed skeptical” about responses. Wallach said he left the courtroom at the hearing’s conclusion feeling that the “oral arguments of the state” had turned the table and it is possible to finally see the state as having a good chance to crack the ban on sports wagering.
It is a bad idea to think of the decision – when it comes in May or June – as a slam dunk for one side or the other. Whoever wins the other side will appeal.
But Wallach sees the bright light of optimism for a decision that would jump start a lot of sports betting legislation in other states that have been closely monitoring the progress of New Jersey’s efforts to climb over the hurdle created by the 1992 federal prohibition.
Why is Wallach optimistic?
For the first time since New Jersey Gov. Chris Christie began his I-want-sports-wagering campaign in 2012, the state is no longer trying to merely blow up PASPA, the Professional and Amateur Sports Protection Act that barred sports betting in all but the four states where it existed in one form or another in 1992.
Instead, the state decided to effectively decriminalize sports wagering, according to Wallach, making it a hands-off issue so far as regulators were concerned as long as the activity takes place in approved locations as racetracks and the hard-pressed Atlantic City casinos that need some new excitement.
A previous federal judge, in a ruling that went against New Jersey, had appeared to hint that the state might side-step PASPA, which is seen as focusing on state regulation.
So the state went back to the drawing board last year and whipped out a piece of legislation that was quickly signed by Christie. The legislation declared in so many words that New Jersey did not regulate sports wagering as long as it only occurred in certain select locations.
Nevada’s approach to this business that generated a 2014 handle of some $3.5 billion was the only approach that mattered. Delaware, Montana and Oregon with their parlay cards, etc., scarcely registered on anyone’s radar.
Nevada style sports wagering in Atlantic City casinos, something that would put millions of people within a short drive of the opportunity to bet whatever they might want on all kinds of sports action…well, this was something to get excited about.
And the overseers of cash-starved state budgets across the country were definitely interested as they followed the path being carved out by the legal minds working on behalf of New Jersey.
The gaming industry’s landscape is continuing along its evolutionary path ever since New Jersey took its first shot at cracking the sports betting ban. Influential forces are now predicting there will come a time when legal, thoughtfully regulated sports betting will be widespread.
National Basketball Association boss Adam Silver said as much just last year, noting that with illegal activity generating billions of dollars annually in untaxed revenue, legalizing it seems like a natural next step.
Then there is the boom in fantasy sports wagering that has sports leagues promoting the appeal of their respective approaches to it. This is a strategy that has well-informed experts scratching their heads, asking why it is not only legal but widely advertised while a $10 bet anywhere except Nevada can invite the police.
An interesting aspect of the changing sports wagering scene is that as commercial casinos continue their sprawl across America major players in this drama have backgrounds that suggest a discussion about gaming no longer involves abstract concepts.
One of the three judges listening to the recent Third Circuit hearings was Maryanne Trump Berry, Donald Trump’s older sister; another was Marjorie Rendell, the wife of former Pennsylvania governor Ed Rendell who was in office when the first casinos were being welcomed in Pennsylvania. The third judge was Julio Fuentes.
The hearing was an appeal of the ruling last fall by Judge Michael Shipp, who has twice ruled against New Jersey. His brother Marcel is running back coach for the New York Jets.
And that brings us to U.S. Sen. John McCain, the Arizona Republican and former GOP presidential candidate who was saying recently that the time has come for serious discussions about whether PASPA has outlived whatever usefulness it might have once had.
Yes, times are definitely changing. The question is how fast?
Phil Hevener has been writing about the Nevada gaming business for more than 30 years. He can be reached at [email protected].